Feedback ASAP Proprietary Limited v Big Ears Limited - [2023] NZHC 2311

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-447

[2023] NZHC 2311

BETWEEN
FEEDBACK ASAP PROPRIETARY LIMITED

Applicant

AND

BIG EARS LIMITED

Respondent

Hearing: 23 August 2023

Appearances:

F E Geiringer for Applicant G Arthur KC for Respondent

Judgment:

24 August 2023

JUDGMENT OF COOKE J

(Interim injunction)

[1] By application dated 18 August 2023 the applicant, Feedback ASAP Proprietary Limited (Feedback) seeks a pre-commencement injunction without notice.

[2] The application relates to services provided by the respondent, Big Ears Limited (Big Ears) to Feedback under long standing contractual arrangements. Feedback is based in Australia, and Big Ears is based in New Zealand. Feedback provides customer survey services to its clients, and Big Ears provides Feedback with computer software services to deliver the customer survey services. The services are primarily provided in relation to consumers of Feedback’s clients in Australia and New Zealand.

[3] The application was first considered by Grice J on 18 August who initially indicated that the Court would not grant interim orders without Big Ears being given an opportunity to be heard. She set down the matter for a telephone conference on

FEEDBACK ASAP PROPRIETARY LIMITED v BIG EARS LIMITED [2023] NZHC 2311 [24 August 2023]

Monday 21 August before me and directed service. A further memorandum from counsel for Feedback was then filed in which counsel advised that Big Ears had withdrawn its provision of services in a manner that caused prejudice to Feedback. Grice J then made interim orders pending the telephone conference. There is a dispute as to what those interim orders required. But in any event, Big Ears instructed counsel over the weekend and before the conference before me on Monday 21 August. Following a telephone conference that afternoon I set down the matter to be heard before me yesterday morning, extending the interim orders until that time. At the end of that hearing I then extended the interim orders until delivery of this judgment.

[4] A number of affidavits have been filed. Feedback’s Managing Director, Philip Prosser filed an affidavit with the initial application. He has since filed two further affidavits. Eric Forsyth, the Managing Director of Big Ears, has also filed two affidavits. Mr Prosser’s final affidavit and a further affidavit of Karen Downes of Feedback were filed on Tuesday evening. Mr Arthur KC objected to this late evidence on the basis that Big Ears had had no opportunity to respond, and because Ms Downes’ affidavit included information exchanged on a “without prejudice” basis. I received the evidence noting these objections.

Background

[5] The services provided by Big Ears to Feedback were initially performed under a written agreement commencing 5 September 2010 for a five year period (the Original Contract). There was no right to terminate that agreement other than for cause. At the end of that contractual period in 2015 there were negotiations between the parties about a new agreement, but no new written agreement appears to have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Feedback ASAP Proprietary Limited v Big Ears Limited

Details

AGLC: Feedback ASAP Proprietary Limited v Big Ears Limited [2023] NZHC 2311
Case: [2023] NZHC 2311
Decision Date: 24 August 2023

CaseChat Overview and Summary

Feedback ASAP Proprietary Limited, an Australian company, has applied for an interim injunction against Big Ears Limited, a New Zealand company, to prevent the latter from terminating its contractual software services. The services provided by Big Ears were initially governed by a written agreement, which was followed by an implied agreement due to the continuation of services after the fixed term ended. Big Ears terminated this agreement with a notice of only four days, which Feedback claims is in breach of an implied term requiring reasonable notice. The court considered several arguments, including the implications of the transition agreement and the potential misuse of Big Ears' intellectual property by Feedback. Despite these concerns, the court concluded that there was a serious question to be tried regarding the reasonable notice requirement, and that the balance of convenience favoured Feedback. An interim injunction was granted, requiring Big Ears to continue providing services until 15 October 2023, including the enhanced services, while Feedback commits to ordering a minimum of 10 hours of services per week. Feedback also agreed to pay a higher rate for these services.

The court's reasoning focused on the need for an orderly transition due to the long-standing nature of the contractual relationship and the bespoke nature of the services. While acknowledging the potential for intellectual property infringement, the court determined that reverting to the old "ticket" system would hinder the transition. The court also noted that Big Ears had remedies for any intellectual property breaches, including the ability to seek damages from Feedback. The injunction was tailored to balance the needs of both parties and facilitate a smooth transition, while protecting Big Ears' intellectual property to the extent possible. The court emphasised that its decision should not be construed as a conclusion on the infringement of intellectual property rights, reserving the right to address such issues in future proceedings.

Orders